Divorce and Period of Waiting
The main object of marriage is that, by entering into it, people led a clean and virtuous life, and just as they were someone’s children, they, too, produced children, and the children were a source of joy to them and a means to the attainment of Paradise in Futurity. For the realization of these ends, it is essential that relations between man and wife were pleasant and based on love and understanding. This, in a nutshell, is the substance of the teachings of the holy Prophet relating to the conduct and behaviour between husband and wife. Yet, sometimes, circumstances arise in which it becomes extremely hard to live together. The Prophet’s advice, even then, is that they should try to the utmost to bear with each other, and resolve their differences, through mutual concession and compromise. Divorce or Talaq, too, has, however, been permitted as a last resort. It, evidently, would have been most unjust if the breaking up of a marriage was not allowed in any case, and however miserable the life of a couple became, it was legally compelled to remain joined in wedlock till death. Detailed guidance has, hence, been furnished on the subject of divorce, the first thing to remember, as a matter of principle, being that such a development is highly displeasing to God, and, therefore, it should be avoided as far as possible. Neither the husband nor the wife should act in a hurry. The step is to be taken only when no choice is left, in the same way as, for example, the amputation of a limb is agreed to when no other course is open.
Most Disagreeable Act
1. It is related by Abdullah bin Omar that the Apostle of God said: “Among the lawful and legitimate things, most disagreeable to God is divorce.”
– Abu Dawood
2. It is related by Mu’ad bin Jabal that the Apostle of God said: “Oh Mu’ad, God has not created anything on the face of the earth which may be more pleasing to Him than the setting free of captives and slave-girls, and He has not created anything on the face of the earth which may be more displeasing to Him than divorce.”
– Daar Qutni
3. It is related by Soban that the Apostle of God said: “The sweet smell of Paradise is forbidden to the woman who demands divorce from her husband except on account of severe hardship.”
– Musnad-i-Ahmad, Tirmizi, Abu Dawood, Ibn-i-Maja and Daarmi
The admonition, evidently, does not apply to the woman for whom it may have become really intolerable to live with her husband, but if she seeks divorce without the things having gone that bad, it will be highly sinful on her part.
4. Abu Moosa Ash’ari related to us, saying that the Apostle of God said: “Women should not be divorced unless they are of a doubtful character. God does not like men who are given to pleasure and enjoyment.”
– Musnad-i-Bazzar, M’ojam-i-Kabeer and Tabrani
What the last part of the above Tradition denotes is that men who divorce their wives simp1y to marry again and derive satisfaction from a new wife are excluded from the love and good pleasure of the Lord. The same is the case with women who obtain divorce from their husbands so that they can have the taste of a new man.
Time and Procedure
5. Narrates Abdullah bin Omar that he divorced his wife in the condition that she was in her periods, and his father mentioned it to the Apostle of God, upon which he was very angry and said: “Tell Abdullah to take back the divorce and keep the wife with him in marriage until the menstruation ends and she comes into the period of cleanliness, and, then, the period of cleanliness ends, and she, again, has her menses, and returns, once more, to the period of cleanliness, Should he still want to divorce her, he might do so during that period of cleanliness, (but) without having a sexual intercourse with her.” The Apostle of God added: “This is the I’ddat laid down in the Qur’an: ‘Divorce them at their prescribed periods.’” (The Qur’an, LXV: 2)
– Bukhari and Muslim
It tells that it is forbidden to divorce a woman while she is having her menses, and whoever does so by mistake should receive back his wife after the divorce. In case the husband remained of the same mind, the divorce ought to be given at the time of purification after menstruation provided that he had not made love to her during it.
The idea behind the arrangement is that during menstruation, a woman is not fit for sexual intercourse while, in the state of purification, it is quite possible that the husband felt inclined towards her and the intention to divorce disappeared from his heart which, in any case, is more pleasing to the Lord and the Apostle.
In the incident related above, Abdullah bin Omar was told by the holy Prophet (saws) to take back the divorce he had given and allow a period of purification to pass, and if, even then, he was adamant, he could divorce his wife during the second period of purification, the idea being that when the two would live together during the whole of the intervening period of purification, the relations might improve and the divorce avoided. But if it did not turn out that way and the divorce was inevitable, the Prophet advised Abdullah bin Omar to do so during the second period of purification, before cohabitation. This last condition, too, was based on the logic that the sexual urge was stronger at the close of the menses, and it might, also, offer a hindrance to divorce.
It, further, shows that though divorce is forbidden during menses and is a grave sin, it does take place if given. Were it otherwise, there would have been no need for restitution, and instead of telling Hazrat Abdullah bin Omar to receive back his wife, the holy Prophet would have said that the divorce was void.
The Sin of Pronouncing Three Divorces at the Same Time
6. Narrates Mahmood bin Labeed “(Once), as the Apostle of God came to know about a person that he had divorced his wife thrice, at the same time, he rose up in great anger and said: ‘Will the Book of God be trifled with even when I am present in your midst? (i.e., ‘To divorce thrice, at the same time, is to make a mockery of the Qur’an in which the law and method of divorce are distinctly laid down. Will the Book of God be reduced to a plaything in my lifetime?’). (As the Apostle of God spoke these words in extreme anger), a Companion stood up and said: ‘O Apostle of God! May I better not kill the man who has acted like that?’”
It shows that the giving of three divorces simultaneously is a most serious transgression of the law of God. But as a divorce given during the monthly course takes effect in spite of being highly sinful and the woman gets divorced as a result of it, the divorce given thrice, at the same time, too, takes place in the opinion of an overwhelming majority of legist-doctors. The giving of three divorces, at the same time, has been condemned as playing with the Book of God, probably, on the basis of the following verses:
“A divorce is only permissible twice, and, then. (a woman) must be retained in honour or released in kindness …… And if a person divorces his wife irrevocably, i.e., the third time, he cannot, after that, remarry her until after she has married another husband and he has divorced her.” (II: 229-30)
From these verses, it is evident that if a man wanted to divorce his wife more than once, he should not do so at the same time, but at different times, with suitable intervals.
The narrative does not tell what reply the Prophet gave to the Companion who had offered to kill the transgressor. Perhaps, he kept quiet, and, thereby, indicated that though the man had committed a grievous sin, it did not amount to an offence punishable with death.
7. It is related by Abu Hurairah that the Apostle of God said: “There are three things to speak seriously and with deliberation with relation to which is a reality, and to speak light-heartedly and in jest with relation to which, too, is a reality. (The three things are): marriage, divorce and restitution, i.e., receiving by a husband of his wife after divorce.”
– Tirmizi and Abu Dawood
Its purport is that if a man marries a woman or divorces her or receives back the divorced wife in joke, it will be real in the eye of the Shariat and deemed to have, actually, taken place. Marriage, divorce or restitution, by their nature, are such serious and solemn acts that no fun or frivolity can be permitted in respect of them.
Divorce under Duress Null and Void
8. Ayesha relates, saying that she heard the Apostle of God say: “A divorce and setting free of a slave under duress are void and have no effect (in law).”
– Abu Dawood and Ibn-i-Maja
It shows that if a man is made to divorce his wife or set free his slave under constraint or coercion, it will not be valid. This is the viewpoint of a majority of legist doctors, but Imam Abu Hanifa holds that a divorce given under duress will be effective in the same way as a divorce given in jest, and the authorities of the Hanafi School give quite a different interpretation of the above Tradition.
It should, however, be noted that Imam Abu Hanifa is not alone in his judgement, but precursors like Saeed bin el-Mussaiyyab, Ibrahim Nakha’ee and Sufiyan Suri, also, are reported to have drawn the same conclusion.